1
A.F.R.
Neutral Citation No. 2023:AHC:166655
Court No. 7
Case : WRIT C No. 10192 of 2023
Petitioner : Paltoo Ram Yadav
Respondent : State Of U.P. And 6 Others
Counsel for Petitioner : Hemant Kumar Rai,Arvind Kumar
Rai
Counsel for Respondent : C.S.C.,Mayank Krishna S
Chandel,Ram Niwas Singh,Rameshwar Prasad Shukla,Vinod
Kumar Chandel
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri S.B. Singh, along with Sri Hemant Kumar Rai,
learned counsel for the petitioner, Sri Kunal Ravi Singh,
learned Chief Standing Counsel along with Sri Abhishek
Shukla, learned Additional Chief Standing Counsel appearing
for the Staterespondents and also Sri Vinod Kumar Chandel,
learned counsel appearing for the respondent Nos. 4 and 5.
2. The present petition seeks to raise an issue with regard to
availability of the statutory remedy of a revision under
Section 210 of the U.P. Revenue Code, 2006 against an order
of remand passed in an appeal.
3. The admitted facts between the parties are that land
bearing plot no. 89 measuring an area of 0.150 hectares
situate at Village Harakhpur, Pargana and Tehsil Sagri,
District Azamgarh was jointly held by two real brothers
2
namely Rajdeo and Hardeo having equal share. One half of
the undivided share of the aforestated plot was purchased by
the respondent no.6 and the predecessorininterest of the
respondent nos. 4 and 5 by means of a registered sale deed
dated 20.05.2003 executed by one of the coowners namely,
Hardeo. The remaining half of the share was purchased by the
petitioner on 01.10.2004 through a registered sale deed from
the other coowner namely Rajdeo. The names of the
petitioners as well as contesting respondents were mutated in
the revenue records as cosharers of the plot in question.
4. The petitioner filed a suit under Section 116 of the Uttar
Pradesh Revenue Code, 2006
1
for division of the holding in
the Court of SubDivisional Officer, Sagri, Azamgarh.
5. The private respondents, though parties in the suit, did not
file their written statements, and a preliminary decree was
passed on 23.01.2019.
6. Thereafter, a Kurra report and map showing the
proportionate shares of the parties were prepared by the
concerned Lekhpal, which were consequently affirmed and an
order dated 26.10.2019 was passed for making the final
decree.
7. The respondent no. 6, at this stage, filed a restoration
application dated 13.12.2019 seeking recall of the order
dated 26.10.2019. It was contended that the concerned
1the Revenue Code
3
respondent got no notice with regard to passing of the order
in the suit for the division of holdings.
8. The restoration application filed by respondent no. 6 was
rejected by the SubDivisional Magistrate in terms of an order
dated 27.12.2021. The Court concerned, while rejecting the
restoration application, also made certain observations on
merits to the effect that in a joint holding in the absence of
any partition, the sale deed could not be held valid and no
claim for division of holding could be made on the basis
thereof.
9. Assailing the aforestated final order dated 26.10.2019
passed in the suit under Section 116, respondent no. 6
preferred an appeal under Section 207 of the Revenue Code.
The respondent no. 5 also preferred an appeal against the
said order.
10. The respondent no. 6 further raised a challenge to the
order dated 27.12.2021, whereby the restoration application
filed by the said respondent had been rejected, in an appeal
under Section 207 of the U.P. Revenue Code, 2006.
11. The aforestated three appeals were heard and decided by
a common order dated 18.11.2022, passed by respondent
no.2/Commissioner Azamgarh Region, Azamgarh. The
respondent no.2 while exercising its appellate powers took
notice of the fact that the Court below had rejected the
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restoration application filed by respondent no. 6 by making an
observation on merits. In this regard, the appellate Court took
notice of the fact that the registered sale deed which was
available on the record of the case was indicative of the fact
that the plot in question was not the ancestral property of the
parties but the same had been purchased by both the parties
from the original tenure holder on the basis of registered sale
deeds executed in the years 2003 and 2004, respectively,
showing separate boundaries. It was also noticed that on the
basis of aforestated sale deeds the parties concerned had got
their names mutated in the revenue records and were in
possession of their respective portions.
12. The appellate Court also noticed that the suit for division
of holding was instituted after about 14 years from the date of
execution of the sale deed. Taking into consideration the fact
that it was only on the basis of the boundaries described in
the registered sale deed that the vendee could claim a right of
possession and it was not a case where the parties were
claiming division on the basis of their respective shares in an
ancestral property, it was held that the observations made by
the Court below in so far as merits of the case were
concerned, were legally untenable. In addition, since the
Court below had decreed the suit exparte without granting
opportunity of hearing and of adducing evidence to the
appellant (respondent no. 6 herein), and thereafter rejected
the restoration application cursorily in terms of the order
dated 27.12.2021, it had committed a manifest error.
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13. The appellate Court, having come to the aforestated
conclusion, held that it would be appropriate for the Court
below to pass a fresh order after giving due opportunity to the
parties concerned to adduce evidence and to present their
case on merits. Accordingly, the orders dated 26.10.2019 and
27.12.2019 have been set aside and the case has been
remanded to the Court below for grant of an opportunity of
hearing and for adducing evidence and for deciding the case
afresh on the basis of merits.
14. An objection has been raised by the counsel appearing for
the Staterespondents and also the counsel appearing for the
private respondents with regard to the entertainability of the
present writ petition, which seeks to assail the order dated
18.11.2022 passed in the appeals by the respondent no. 2, by
pointing out that the petitioner would have an efficacious
statutory remedy of filing a revision against the said order,
before the Board of Revenue.
15. Counsel for the petitioner has sought to refute the
aforestated preliminary objection raised on behalf of the
respondents by submitting that since the appellate Court had
remanded the matter to the Court below without any
observation on merits of the case and without setting aside
the findings recorded by the Court below, it was a case of a
'remand simpliciter' and, therefore, the remedy of the revision
would not be available. In this regard, reliance was placed on
a decision of this Court in Ram Bhajan and Others vs.
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Deputy Director of Consolidation, Allahabad and another
1
to submit that an order of a ‘remand simpliciter’ would be of
an interlocutory nature, and a revision against the said order
would not be maintainable.
16. Counsel appearing for the private respondents has
controverted the aforestated submissions by drawing
attention of the Court to the observations made by the
appellate Court on merits of the case, to point out that the
Court while deciding the appeal has considered the reasoning
assigned by the Court below and remanded the matter with
observations on merits; therefore, the order cannot be said to
be a ‘remand simpliciter’, which can be held to be of an
interlocutory nature and not amenable to the remedy of
statutory revision. Learned counsel has referred to the
decisions of this Court rendered in Mahendra Singh and
Others Vs. Board of Revenue U.P. and Others
2
and Jhinka
Devi Vs. State of U.P. and others
3
, on the scope of the
revisional powers under the Revenue Code.
17. Learned Chief Standing Counsel appearing for the State
respondents has also referred to the order passed by the
respondent no. 2 while deciding the appeal, to point out that
the appellate order contains a detailed consideration of the
case on its merits and the remand having been made with
specific directions, the said order can in no manner to held to
12001 (92) RD 330
22022(8) ADJ 105
32022 (7) ADJ 31
7
be a ‘remand simpliciter’ and therefore not amenable to the
remedy of a revision. It is submitted that the appellate court
has recorded a categorical finding that the land is not
ancestral in nature and that the parties were in possession
according to the boundaries described in their respective sale
deeds and would continue in possession in accordance with
the same.
18. It is further pointed out that the decision in the case of
Ram Bhajan (supra), which is sought to be relied upon on
behalf of the petitioner, cannot be held to be good law in the
light of a subsequent Division Bench decision of this Court in
Deena Nath and Ors. vs. Deputy Director of
Consolidation
2
, wherein while deciding a reference, on the
point, it was held that the order of the Settlement Officer of
Consolidation, which had finally decided the appeal by setting
aside the order of the Consolidation Officer and remanding
the matter to the Consolidation Officer, was an order finally
deciding the appeal and thus could not be termed to be an
interlocutory order.
19. Learned State Counsel submits that the remand having
been made with findings regarding rights of the parties, the
order would be appealable as per Schedule III and the writ
petition would not be maintainable. Alternatively, it is
submitted that even in case the remedy of appeal is held to be
22010 (6) AWC 6099 All (DB)
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not available, the remedy of revision under Section 210 of the
Code can be availed of.
20. In order to appreciate the rival contentions, the relevant
statutory provisions would be required to be adverted to,
which are as follows:
“Section 116. Suit for division of holding.(1) A Bhumidhar
may sue for the division of the holding of which he is a co
sharer.
[(2) In every such suit, the Court may also divide the trees,
wells and other improvements existing on such holding but
where such division is not possible, the trees, wells and other
improvements aforesaid and valuation thereof shall be
divided and adjusted in the manner prescribed.]
(3) One suit may be instituted for the division of more
holdings than one where all the parties to the suit other than
the Gram Panchayat are, jointly interested in each of the
holdings.
(4) To every suit under this section, the Gram Panchayat
concerned shall be made a party.
Section 207. First appeal.(1) Any party aggrieved by a final
order or decree passed in any suit, application or proceeding
specified in Column 2 of the Third Schedule, may prefer a
first appeal to the Court or officer specified against it in
Column 4, where such order or decree was passed by a Court
or officer specified against it in Column 3 thereof.
(2) A first appeal shall also lie against an order of the nature
specified
(a) in Section 47 of the Code of Civil Procedure, 1908;
or
(b) in Section 104 of the said Code; or
(c) in Order XLIII, Rule 1 of the First Schedule to the
said Code.
(3) The period of limitation for filing a first appeal under this
section shall be thirty days from the date of the order or
decree appealed against.
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Section 209. Bar against certain appeals.Notwithstanding
anything contained in Sections 207 and 208, no appeal shall
lie against any order or decree
(a) made under Chapter XI of this Code;
(b) granting or rejecting an application for
condonation of delay under Section 5 of the Limitation
Act, 1963;
(c) rejecting an application for revision;
(d) granting or rejection an application for stay;
(e) remanding the case to any subordinate Court;
(f) where such order or decree is of an interim nature;
(g) passed by Court or officer with the consent of
parties; or
(h) where order has been passed exparte or by
default:
Provided that any party aggrieved by order passed ex
parte or by default, may move application for setting aside
such order within a period of thirty days from the date of the
order:
Provided further that no such order shall be reversed
or altered without previously summoning the party in whose
favour order has been passed to appear and be heard in
support of it.
Section 210. Power to call for the records.(1) The Board
or the Commissioner may call for the record of any suit or
proceeding decided by any subordinate Revenue Court in
which no appeal lies, for the purpose of satisfying itself or
himself as to the legality or propriety of any order passed in
such suit or proceeding; and if such subordinate court
appears to have
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction of vested; or
(c) acted in the exercise of such jurisdiction illegally or
with material irregularity;
the Board, or the Commissioner, as the case may be may pass
such order in the case as it or he thinks fit.
(2) If an application under this section has been moved by
any person either to the Board or to the Commissioner, no
further application by the same person shall be entertained
by the other of them.
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Explanation.—For the removal of doubt it is, hereby, declared
that when an application under this section has been moved
either to the Board or to the Commissioner, the application
shall not be permitted to be withdrawn for the purpose of
filing the application against the same order to the other of
them.
(3) No application under this section shall be entertained
after the expiry of a period of sixty days from the date of the
order sought to be revised or from the date of
commencement of this Code, whichever is later.”
21. For ease of reference, the relevant rules under the U.P.
Revenue Code Rules 2016, corresponding to the statutory
provisions relating to division of holdings, are also being
extracted below:
“Rule 108. Suit for division for several holdings (Section
116). Where the suit relates to the division of more than one
holding, the particulars specified in Rule 107 shall be
mentioned in the plaint in respect of all such holdings.
Rule 109. Preliminary and Final decrees (Section 117).
(1) If the plaint referred to in Rule 107 or Rule 108 is in
order, it shall be registered as a suit and the defendants shall
be called upon to file their written statements. The suit shall
then be decided according to the provisions of the Code of
Civil Procedure, 1908.
(2) Before making a division the Court shall
(a) determine separately the share of the plaintiff and
each of the other cotenure holders;
(b) record which, if any, of the cotenure holders wish
to remain joint; and
(c) make valuation of the holding (or holdings) in
accordance with the circle rate fixed by the Collector
applicable to each plot in the holding.
(3) If the suit is decreed, the Court shall pass a preliminary
decree declaring the share of the plaintiff.
(4) After the preparation of preliminary decree the Sub
Divisional Officer shall get the Kurra prepared through the
Lekhpal.
(5) The Lekhpal shall submit the Kurra report within a period
of one month from the date of receiving the order in this
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regard and at the time of preparation of Kurra he shall
observe the following principles
(a) the plot or plots shall be allotted to each party in
proportionate to his share in the holding;
(b) the portion allotted to each party shall be as
compact as possible;
(c) as far as possible no party shall be given all the
inferior or all the superior classes of land;
(d) as far as possible existing fields shall not be split
up;
(e) Plots which are in the separate possession of a
tenure holder shall, as far as possible, be allotted to
such tenure holder if they are not in access of his
share;
(f) If the plot or any part thereof is of commercial
value or is adjacent to road, abadi or any other land of
commercial value, the same shall be allotted to each
tenure holder proportionately and in the case of
second condition the same shall be allotted
proportionately adjacent to road, abadi or other land
of commercial value; and
(g) If the cotenure holders are in separate possession
on the basis of mutual consent or family settlement,
the Kurra shall, as far as possible, be fixed accordingly.
(6) When the report regarding Kurra is submitted by the
Lekhpal, the objection shall be invited thereon and thereafter
the appropriate order shall be passed by the SubDivisional
Officer after affording opportunity of hearing to the parties
and considering the objection, if any, filed against the report
submitted by the Lekhpal.
(7) If the report and Kurra is confirmed by the SubDivisional
Officer, the final decree shall follow it.
(8) At the stage of the final decree, the Court shall:
(a) Separate the share of the plaintiff from that of the
defendant by metes and bounds.
(b) Place on record a map showing in different colours
the properties given to plaintiff as distinct from those
given to the defendant.
(c) Apportion the land revenue payable by the parties.
(d) Direct the record of rights and map to be corrected
accordingly.
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(9) If, for adjusting the equities between the parties, payment
of compensation regarding trees, wells or other
improvements becomes necessary, the Revenue Court
concerned may also pass necessary orders at the stage of final
decree.
(10) The SubDivisional Officer shall make an endeavour to
decide the suit within the period of six months and if the suit
is not decided within such period, the reason shall be
recorded.”
22. The facts of the case regarding which there appears to be
no dispute between the contesting parties is that onehalf of
the undivided share of a plot of land jointly held by two
brothers, was purchased by respondent no. 6 by means of a
registered saledeed executed by one of the coowners. The
remaining half of the share was purchased by the petitioner
through another sale deed by the other cosharer. The
petitioners as well as the contesting respondents got their
names mutated in the revenue records as cosharers of the
plot in question.
23. Thereafter, the petitioner preferred a suit under Section
116 of the Revenue Code for division of the holding in the
Court of the SubDivisional Officer. The private respondents,
though parties in the suit did not file their written statements,
and a preliminary decree was made in terms of the order
dated 23.01.2019, and thereafter, the suit was finally decreed
by an order dated 26.10.2019. A restoration application dated
13.12.2019, filed by respondent no. 6 seeking recall of the
aforestated order, was rejected by the SubDivisional
Magistrate by an order dated 27.12.2021. The Court while
13
rejecting the restoration application, also made certain
observations on merits.
24. The aforestated final order dated 26.10.2019, in terms of
which the suit had been decreed, was subjected to an appeal
filed by respondent no. 6 under Section 207 of the Revenue
Code. An appeal against the said order was also filed by
respondent no. 5. The respondent no. 6 also preferred an
appeal under Section 207 of the Revenue Code against the
order dated 27.12.2021 in terms of which the restoration
application filed by the said respondent had been rejected.
25. The three appeals were heard and decided by a common
order dated 18.11.2022 passed by the Commissioner,
Azamgarh. The orders dated 26.10.2019 and 27.12.2019
were set aside and the case was remanded to the Court below
to grant an opportunity of hearing to the parties concerned to
decide the case afresh on merits.
26. It is against the aforestated order dated 18.11.2022
passed by the Commissioner that the present petition has
been filed, wherein an objection has been raised on behalf of
the private respondents with regard to entertainability of the
petition by pointing out that against the order passed in
appeal, the petitioner would have an efficacious statutory
remedy of filing a revision.
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27. The argument sought to be raised on behalf of the
petitioner to refute the aforestated preliminary objection is
that the remand order is without any observation on merits,
and therefore, the same is a 'remand simpliciter', and the
order being of an interlocutory nature, a revision thereagainst
would not be maintainable.
28. In order to test the aforesaid argument the order passed
in appeal would be required to be examined. The order
passed by the Commissioner while exercising appellate
powers takes notice of the fact that the court below has
rejected the restoration application filed by respondent no. 6
by making observations on merits. The appellate court has
also taken notice of the fact that the registered sale deed
which was available on the record of the case was indicative
of the fact that the land in question was not the ancestral
property of the parties, but the same had been purchased by
both the parties from the original tenure holder by means of
registered sale deeds, showing separate boundaries. The
appellate court, after discussing the findings returned by the
court below, has held the same to be legally unsustainable.
Further, since the court below had decreed the suit ex parte
without granting opportunity of hearing and adducing
evidence to the parties, the case has been remanded with a
direction to the court below to pass a fresh order after giving
due opportunity of hearing to the parties concerned. The
remand order passed by the Commissioner, thus, containing a
detailed consideration on merits of the case and thereafter
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recording a conclusion that the findings returned by the court
below, were legally unsustainable, cannot be held to be
'remand simpliciter'.
29. The decision in the case of Ram Bhajan and Others
(supra), which is sought to be relied upon on behalf of the
petitioner, thus, would not be applicable in the facts of the
case. Moreover, the said judgment cannot be held to be good
law in light of the subsequent Division Bench decision of this
Court in Deena Nath and Ors. (supra), wherein while
deciding the reference on the point, it was held that an order
passed in appeal under Section 11 of the U.P. Consolidation
of Holdings Act, 1953, by the Settlement Officer
(Consolidation) deciding the appeal finally by setting aside
the order of the Consolidation Officer and remanding the
matter would not be an interlocutory order and the revision
against the said order would not be barred.
30. The order of remand, in the present case, in terms of
which the case has been remanded after making certain
observations on the merits of the case, and issuing directions
to the court below to grant the parties opportunity of hearing
and of adducing evidence, cannot be held to be a 'remand
simpliciter' or an order of an 'interlocutory nature'. This is
more so since the order passed by the Commissioner has a
finality attached to it in the sense that it has the effect of
disposing of the appeal.
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31. The order passed by the Commissioner while exercising
powers of the first Appellate Court under Section 207 of the
Revenue Code, having resulted in a remand, the bar
contained under Clause (e) of Section 209 would be attracted
and the remedy of a further statutory appeal would not be
available.
32. The bar under Section 209 against filing of an appeal,
having been attracted, it would be required to be seen as to
whether the revisional jurisdiction under Section 210, can be
invoked against the order passed by the Commissioner in
appeal. The language of Section 210 indicates that the powers
of revision may be exercised in respect of any order passed in
a suit or 'proceeding decided'.
33. The word 'proceeding' though not defined under the
Revenue Code, when applied to a suit, is generally used, to
express the separate steps taken in the course of a suit.
34. The word 'proceeding' has been defined in the Webster's
Third International Dictionary
3
as meaning a particular step
or series of steps adopted for doing or accomplishing
something.
35. Black's Law Dictionary
4
defines 'proceedings' as the
regular and orderly progression of a lawsuit, including all acts
and events between the time of commencement and the entry
of judgment.
3Webster's Third International Dictionary at page 1807
4Black's Law Dictionary, 11
th
Edition
17
36. Shorter Oxford English Dictionary
5
defines the word
'proceeding' as 'the fact or manner of taking legal action; a
legal action; an act done by authority of a court of law; a step
taken by a party in a case'.
37. The Law of Pleading Under the Codes of Civil
Procedure
6
describes 'proceeding' in the following terms:
“'Proceeding' is a word much used to express the business
done in Courts. A proceeding in court is an act done by the
authority or direction of the court, express or implied. It is
more comprehensive than the word 'action,' but it may
include in its general sense all the steps taken or measures
adopted in the prosecution or defence of an action,
including the pleadings and judgment. As applied to
actions, the term 'proceeding' may include (1) the
institution of the action; (2) the appearance of the
defendant; (3) all ancillary or provisional steps, such as
arrest, attachment of property, garnishment, injunction,
writ of ne exeat; (4) the pleadings; (5) the taking of
testimony before trial; (6) all motions made in direction;
(7) the trial; (8) the judgment; (9) the execution; (10)
proceedings supplementary to execution, in court practice;
(11) the taking of the appeal or writ of error; (12) the
remittitur, or sending back of the record to the lower Court
from the appellate or reviewing Court; (13) the
enforcement of the judgment, or a new trial, as may be
directed by the Court of last resort.”
38. The word 'proceeding' has been described in Words and
Phrases, Permanent Edition
7
, as a comprehensive term
meaning a prescribed course of action for enforcing a legal
right and hence embracing the requisite steps by which a
judicial action is invoked.
5Shorter Oxford English Dictionary, Sixth Edition 2007, Oxford University Press
6Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3-4 (2
nd
Edition
1899)
7Words and Phrases, Permanent Edition Vol.34
18
39. The foregoing discussion is indicative that the word
'proceeding' ordinarily relates to the modes in which judicial
transactions are conducted. The word has to be understood as
a comprehensive term and would generally mean a prescribed
course of action for enforcing a legal right. It would also be
held to embrace the requisite steps by which a judicial action
is invoked and would include the form and the manner of
conducting judicial business before a Court of law. The word
'proceeding' would thus be seen to be wider than the word
'case'.
40. Section 210 of the Revenue Code which provides the
remedy of a revision empowers the Board or the
Commissioner to call for the record of 'any suit or proceeding
decided' by any subordinate Revenue Court in which no
appeal lies for the purpose of satisfying itself as to the legality
or propriety of any order passed in suit or proceeding.
41. A plain reading of Section 210 of the Revenue Code
indicates that a revision would be entertainable on the
cumulative satisfaction of the following circumstances:
I. (i) impugned order amounts to a 'suit or proceeding
decided';
(ii) such an order must have been passed by any
Revenue Court subordinate to the Board of Revenue
or Commissioner;
(iii) such an order must not be appealable.
II. there must be an assertion with regard to jurisdictional
error by the subordinate revenue court, i.e. to say:
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(i) exercise of jurisdiction not vested in it by law, or
(ii) failure to exercise a jurisdiction so vested, or
(iii) acting in the exercise of such jurisdiction illegally
or with material irregularity.
42. The section comprises two parts, the first prescribes the
condition under which jurisdiction of the Board or the
Commissioner arises, i.e. there is a 'suit or proceeding
decided' by a subordinate Revenue Court in which no appeal
lies, the second sets out the circumstances in which the
jurisdiction may be exercised.
43. The question regarding maintainability of the revision by
the Board or the Commissioner would be distinct and
independent of the question as to when the Board or the
Commissioner would, in exercise of revisional jurisdiction,
interfere with the orders passed by the courts subordinate
thereto. The former concerns the power to call for records of
courts subordinate to it by the Board or the Commissioner
and relates to existence of condition precedent on the basis of
which such exercise of jurisdiction under Section 210
depends. The latter relates to spelling out the circumstances
under which the jurisdiction under Section 210 may be
exercised.
44. The maintainability of a revision would therefore
depend on two conditions; first, that it must relate to a suit
or proceeding decided by any Revenue Court subordinate to
the Board or Commissioner and second, it must be in
20
connection with any 'suit or proceeding decided', against
which no appeal lies. Once these twin conditions are satisfied,
it cannot be said that the revision would not be maintainable.
The question, whether in a given case, the Court chooses to
exercise the jurisdiction to interfere with the orders passed by
the subordinate Revenue Court in a suit or proceeding
decided would depend upon the facts and circumstances
indicative of jurisdictional error in a particular case.
45. It is well settled that an appeal is a continuation of the
suit. Whenever an appeal lies against any decree and when an
appeal is filed, the finality of the decree of the trial court
ceases. Thereafter, it is the judgment and decree of the
appellate court which would replace the decree and judgment
of the trial court.
46. It can therefore be said that the word 'proceeding' would
also include the 'proceedings' at the appellate stage. This
would be more so for the reason that the pursuit of a legal
remedy, suit, appeal or second appeal are steps in a series of
proceedings all connected by an intrinsic unity and are to be
regarded as one legal proceeding.
47. The meaning to be attributed to the word 'proceeding'
thus would to depend upon the scope of the enactment
wherein the expression is used and with reference to the
particular context wherein it occurs. In general sense, the
word 'proceeding' is to be held to mean the form and manner
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of conducting judicial business before a court. It can be seen
as a stage in the journey of a litigation – a step in the ladder
of the judicial process.
48. The word 'proceeding', in the expression 'proceeding
decided' occurring in Section 210 of the Revenue Code would
therefore have to be construed as being wide enough to
comprehend within its ambit a proceeding initiated pursuant
to an appellate order also. It would, in fact, include any suit,
appeal or application. The expression 'proceeding' with
reference to a party visavis a court of law would have to be
held to include each and every step or action taken before or
during the course of the progress of the suit, including the
appellate stage.
49. The condition precedent in order to invoke the revisional
jurisdiction under Section 210 has been seen to include within
its ambit 'proceeding decided' other than a 'suit decided'. It
cannot be restricted to the entirety of proceedings in the
journey of a suit. To interpret 'proceeding decided' as entire
proceedings and not a part of a proceeding would amount to
restricting the exercise of revisional jurisdiction which is not
as contemplated under Section 210.
50. The revisional court has the power to rectify an order of a
subordinate revenue court at any stage of the suit or
proceedings, even if, the order does not finally dispose of the
suit or the proceeding. The expression 'proceeding decided'
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would include a part of a proceeding and an interlocutory
order directly affecting the rights and obligation of parties
would also have to be held to be included within its scope.
51. The order passed by the Commissioner having decided the
appeal finally, the same would have to be held to be within
the ambit of the expression 'proceeding decided', occurring in
Section 210 of the U.P. Revenue Code, and therefore the
remedy of a revision thereagainst cannot be said to be
excluded.
52. The order dated 18.11.2022 passed by the Commissioner
while deciding the appeals having been held to be amenable
to the statutory remedy of revision under Section 210 of the
U.P. Revenue Code, this Court would not be inclined to
entertain the writ petition in view of the availability of an
efficacious statutory legal remedy.
53. The writ petition stands accordingly dismissed.
Order Date: 18.8.2023
Mohini/Arun K. Singh
[Dr. Y.K. Srivastava, J.]
Legal Notes
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